September 5, 2012

Lawyers for two veterans' groups have asked the U.S. Supreme Court to hear their case about the lengthy delays in the process of getting their benefits from the U.S. Department of Veterans Affairs.

Last year, the groups won a 2-1 Ninth Circuit decision that held that the delays in receiving disability benefits violated due process and were unconstitutional, setting the stage for federal court oversight of the application determinations, and agency appeals.

The Ninth Circuit reheard the case en banc and reversed in May, citing a lack of jurisdiction. It said that the "nonadversarial procedures" at the VA's regional offices were "sufficient to satisfy due process."

The petition, filed today, focuses on the statutory jurisdiction provision in the en banc decision. That decision said that the court couldn't review the constitutional claims attacking the VA processes because the Veterans Judicial Review Act (VJRA), 38 U.S.C. § 511(a), provides that the Secretary of Veterans Affairs “shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.”

The petition is linked at the end of this article, and includes appendices that contain the first Ninth Circuit opinion and the en banc reversal. It also contains the original federal district court decision, which had found in the government's favor, and which the en banc decision restores.

[Our website article on the May Ninth Circuit en banc reversal can be found here. Website coverage of the first Ninth Circuit decision can be found here and at "'This is Their Wake-Up Call': Ninth Circuit Trashes the Veterans' Administration Clam Processes," by Russ Bleemer and Peter Siemons, 29 Alternatives 7 (July/August 2011)(available here with subscription).]

The cert petition--prepared by attorneys in the San Francisco and Washington, D.C., offices of Morrison & Foerster, and Berkeley, Calif., advocacy firm Disability Rights Advocates, on behalf of the petitioner veterans groups, Veterans for Common Sense and Veterans United for Truth--says that there is no "decision" involved in the veterans' claims under the statute:

The Ninth Circuit’s construction departs from the plain language of the statute by reading the word "decision" out of Section 511(a). Nowhere do petitioners challenge any “decision” by the Secretary in any particular veteran’s case; petitioners challenge the VA’s deficient procedures and unjustifiable delays before making the decision, rather than the decision itself.

The cert petition--402 pages with appendices--says that there are three federal circuit courts that have a conflicting view of the Ninth Circuit's interpretation of Sec. 511(a)'s reach, and the Supreme Court should take the case to resolve the conflict.

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The brief also updates earlier arguments on the scope of the delays and backlogs in processing veterans' claims.

It notes that 75,000 veterans are awaiting mental health treatment due to "an unprecedented" number of post-traumatic stress syndrome claims because of the Iraq and Afghanistan wars.

"Congress has taken notice of this epidemic and has directed the VA to implement a comprehensive fix," the petition states, "but the VA has failed to implement procedures necessary to ensure that our Nation’s veterans receive the benefits to which they are entitled."

Since the May Ninth Circuit en banc decision, however, the VA has addressed the claims' backlogs, and the processing delays. A May audit of the VA Regional Offices’ claims processes by the agency's inspector general (available here), provides recommendations to fix the system to generate fewer appeals.

In July, the VA held a press conference to announce changes in the claims processes with a similar goal. Those changes include a speedier review process in the regional VA offices, which is the primary battleground over the delays. A press release on the changes can be found here.

Under the ruling below, veterans and their organizations have no recourse to challenge the systemic failures of the VA to provide expedient medical care. Nor can veterans or their families seek review of the VA’s failures to make timely determinations regarding disability and death benefits requests—meanwhile, those systemic failures force veterans to navigate the Kafkaesque cycle of benefits denials, appeals, and remands. This is the case even though [the Supreme] Court consistently has construed jurisdiction-stripping statutes narrowly, particularly where their application would foreclose all judicial review and bar constitutional challenges.

Despite the jurisdictional focus, the petition repeatedly castigates the government for veterans' compensation problems, taking aim at the VA and the executive branch:

Congress has done its part by requiring that our veterans receive medical care and disability benefits when they return home and by providing the necessary funding. The executive branch, however, has fallen woefully short. This Court should not allow the government’s systemic failures to be insulated from judicial review.

The petition also counters the en banc decision's characterization of the claims process: "It is difficult to imagine a more adversarial system than one in which thousands of veterans must seek mandamus relief from a court to receive the disability benefits to which they are entitled by statute."

The Supreme Court will decide whether to take the case this fall; amicus briefs are expected to be filed soon.